Succession Notes
Study Units 6 to 8
DISTRIBUTION OF THIS DOCUMENT IS ILLEGAL
**These are key points taken from Word documents. SOME parts are directly quoted, others have been simplified by me. I do not take
credit for any knowledge expressed in this document, only the summary of notes and easy access to key points that I found important**
Du Toit, Francois. (2022). Law of Succession Study Unit 6-8. Unpublished manuscript, PVL2003H, University of Cape Town, South Africa.
Terminology
(Study Units 6-8)
- animus revocandi: intention to revoke will
- ademptio: ademption. The bequest of an asset m is revoked due to
the asset being sold, destroyed or given away by the deceased before
they die
- testamenti factio passiva: capacity to inherit
- nasciturus fiction: child that was born alive and conceived prior to
the testator's death is considered to have obtained rights from the
moment it was conceived
- Amanuensis: a person who signs a will on the testator’s behalf
- conjunctissimae personae: the deceased’s parents, spouse(s) and
child(ren)
- de bloedige hand neemt geen erfenis: the person with blood on
his/her hands cannot inherit
Study Unit 6
- S 2(1)(a) and s 2(1)(b) of the Wills Act 7 of 1953
- non-compliance with the execution formalities = will invalid
- non-compliance with amendment formalities = amendment
invalid
- results in the disregard of testators’ wishes
, - S 2(3) provides for the rescue of a will (or amendment) in order to
preserve a testator’s wishes
- Occurs even though non-compliance occurred with one or more of
the formalities
Treatment of wills after testator’s death
- Will must be given to the relevant Master of the High Court
(Administration of Estates Act 66 of 1965)
- The Master will check that it complies with all the execution
formalities of s 2(1)(a) and/or s 2(1)(b) of the Wills Act
- if all is in order, the Master will accept the will for the
administration of the deceased’s estate (in terms of the
Administration of Estates Act)
- if the Master is not satisfied, he will reject the will or an
amendment
- If someone wishes to challenge the Master’s decision to reject
the will, that person will have to bring an application to the High
Court
- If the court agrees with the Master, it will declare the will or
amendment invalid
- S 2(3) of the Wills Act now empowers the High Court to issue an
order to the Master not to reject a will (or amendment), but
instead to accept that will to administer the deceased’s estate
S2(3) Requirements
- 1. there must be a document before the court
- must be a written document of the paper variety
- does not need to look like a will (can be a note, letter etc.)
- must contain the testator’s wishes (in some form of writing or
typed out)
- spoken word, a CD or DVD cannot be condoned
Macdonald v The Master 2002
Study Units 6 to 8
DISTRIBUTION OF THIS DOCUMENT IS ILLEGAL
**These are key points taken from Word documents. SOME parts are directly quoted, others have been simplified by me. I do not take
credit for any knowledge expressed in this document, only the summary of notes and easy access to key points that I found important**
Du Toit, Francois. (2022). Law of Succession Study Unit 6-8. Unpublished manuscript, PVL2003H, University of Cape Town, South Africa.
Terminology
(Study Units 6-8)
- animus revocandi: intention to revoke will
- ademptio: ademption. The bequest of an asset m is revoked due to
the asset being sold, destroyed or given away by the deceased before
they die
- testamenti factio passiva: capacity to inherit
- nasciturus fiction: child that was born alive and conceived prior to
the testator's death is considered to have obtained rights from the
moment it was conceived
- Amanuensis: a person who signs a will on the testator’s behalf
- conjunctissimae personae: the deceased’s parents, spouse(s) and
child(ren)
- de bloedige hand neemt geen erfenis: the person with blood on
his/her hands cannot inherit
Study Unit 6
- S 2(1)(a) and s 2(1)(b) of the Wills Act 7 of 1953
- non-compliance with the execution formalities = will invalid
- non-compliance with amendment formalities = amendment
invalid
- results in the disregard of testators’ wishes
, - S 2(3) provides for the rescue of a will (or amendment) in order to
preserve a testator’s wishes
- Occurs even though non-compliance occurred with one or more of
the formalities
Treatment of wills after testator’s death
- Will must be given to the relevant Master of the High Court
(Administration of Estates Act 66 of 1965)
- The Master will check that it complies with all the execution
formalities of s 2(1)(a) and/or s 2(1)(b) of the Wills Act
- if all is in order, the Master will accept the will for the
administration of the deceased’s estate (in terms of the
Administration of Estates Act)
- if the Master is not satisfied, he will reject the will or an
amendment
- If someone wishes to challenge the Master’s decision to reject
the will, that person will have to bring an application to the High
Court
- If the court agrees with the Master, it will declare the will or
amendment invalid
- S 2(3) of the Wills Act now empowers the High Court to issue an
order to the Master not to reject a will (or amendment), but
instead to accept that will to administer the deceased’s estate
S2(3) Requirements
- 1. there must be a document before the court
- must be a written document of the paper variety
- does not need to look like a will (can be a note, letter etc.)
- must contain the testator’s wishes (in some form of writing or
typed out)
- spoken word, a CD or DVD cannot be condoned
Macdonald v The Master 2002
